观韬视点｜在中国执行境外仲裁程序中临时救济措施的可能性

In the context of foreign arbitration proceedings, the arbitral tribunal is likely to issue interim awards or interim measures/orders in favor of the party involved. It is also likely that a foreign court grant interim relief in support of the foreign seated arbitrations. Nevertheless, it is a subject of some debate whether such interim relief issued by foreign tribunal or granted by foreign court in support of foreign arbitrations (“Interim Relief for Foreign Arbitration Proceedings”) could be recognized and enforced in China, as the opposing party without assets outside China would possibly do not voluntarily comply with such interim relief despite potential adverse impact to its credibility in the offshore arbitration.

According to the PRC Civil Procedure Law and the PRC Arbitration Law, Chinese courts will only provide interim relief, including property preservation and evidence preservation, for domestic arbitration. Therefore, PRC courts will have no legal basis to directly grant interim relief in respect of a foreign seated arbitration. 

Within the PRC court system, any attempt to recognize and enforce a foreign court judgment will generally face significant difficulties. However, PRC has acceded to the New York Convention on Recognition and Enforcement of International Arbitration Awards ("New York Convention"), pursuant to which arbitral awards issued in respect of commercial disputes in any other contracting state are generally enforceable in China. Nevertheless, with respect to Interim Relief for Foreign Arbitration Proceedings, it will be quite difficult, if not impossible, to have them recognized and enforced in China.

There is no record of any successful attempt by a party seeking to enforce an interim award issued by a foreign arbitral institution in China. It is most likely that any interim award would not be recognised or enforced due to its provisional, procedural and not final nature. 

The New York Convention does not specify that the awards that can be recognized and enforced should be “final” awards, and the PRC legal authorities relating to the enforcement of foreign arbitral awards also do not distinguish "final" and "interim" awards. However, in practice the PRC courts are generally inclined to refuse recognizing and enforcing offshore interim awards for the reason that such awards are not final and subject to any potential revocation or amendment made by the tribunal.

As to an interim relief granted by foreign court in support of the foreign seated arbitrations, it would also be faced with difficulty in being recognized and enforced in China. When the PRC court considers whether a foreign court order is enforceable on basis of bilateral treaty or reciprocal enforcement, a “final judgment” would be a generally pre-requisite condition. Interim relief issued by a foreign court in support of foreign seated arbitrations would not be a “final judgment” and hence, is unlikely to be recognized and enforced by the PRC court.

In conclusion, under the current legal system of PRC, it would be significantly difficult for Interim Relief for Foreign Arbitration Proceedings to be recognized and enforced in China. According to our past practice experience, the party involved in the foreign arbitration may, as a part of the overall strategy, consider initiating a concurrent non-contractual proceedings in the competent PRC court, such as fraud, tortious breach or bad faith conduct action etc., and apply for an asset preservation order issued by the PRC court, to seize the property of the opposing party within China and ensure the future enforceability of the offshore final arbitral award to some extent.